The Mathews County Board of Supervisors and County Administrator Ramona Wilson have filed motions asking Mathews Circuit Court to dismiss the Hole in the Wall Waterfront Grill’s temporary injunction that was granted on July 25, to continue the case beyond the initial dates set for a hearing and a trial, and to require that the restaurant pay $6,000 a month for pump and haul.
Hole in the Wall Waterfront Grill has filed motions, as well, including a request to continue one hearing date while making another one “a date certain,” and asking the court to disqualify Mathews County Attorney Andrea Erard from representing the county on the grounds that she is “a crucial witness” for the restaurant.
The injunction at issue, which was granted by Judge William H. Shaw (ret.) on a preliminary basis, allowed the restaurant to reopen after it was evicted by the county on July 10 for nonpayment of its annual rent. An evidentiary trial on HITW’s motion is scheduled for Wednesday, Sept. 3, while a full evidentiary trial on any remaining issues is set for Oct. 23. The matter is also on the court’s Sept. 24 docket, but may be waived.
The county’s filing includes a demurrer to Hole in the Wall’s motion for a preliminary injunction on the grounds that the restaurant didn’t provide sufficient facts to show that evicting the restaurant could cause irreparable harm and damage to the reputation of the restaurant or result in loss of employment for over 30 people.
“Rather,” says the demurrer, “the complaint presents conclusory statements and argument that ‘irreparable harm’ will occur.”
The Rules of the Supreme Court of Virginia require that an entity assert “‘a legally viable claim based on credible facts (not mere allegations)’ that will more likely than not succeed on the merits,” says the demurrer, claiming that this was not done by the restaurant.
“Most importantly, the HITW has an adequate remedy at law and therefore is not entitled to a preliminary injunction,” says the motion.
Hole in the Wall also filed suit alleging breach of contract, but the county charges that the restaurant’s facts “are nothing more than bare assertions” and that the restaurant failed to provide adequate facts to substantiate such a claim and failed to “sufficiently plead” what damages it was seeking and in what amount.
In addition to the emergency injunction, Hole in the Wall requested a permanent injunction, and the county argues that the complaint doesn’t sufficiently address whether legal remedies such as monetary damages might be adequate, whether the balance of hardships favors Hole in the Wall, and why a permanent injunction wouldn’t be “against the public interest.”
The county said Hole in the Wall had not responded to its request for payment of pump and haul costs estimated at $6,000 per month while the restaurant continues to operate and has asked the court to require the restaurant to reimburse the county for “the daily prorated cost of pump and haul” from July 25 until the emergency injunction expires.
Finally, the county has asked the court to set dates for hearings on its motions and to continue the court dates already set for Sept. 3 and Oct. 23.
Hole in the Wall filings
Hole in the Wall has asked for a continuance of the Sept. 3 hearing, as well, but additionally requested that the injunction allowing it to continue operating remain in place “until a future review by the court on a date certain, preferably October 23, 2025.”
Hole in the Wall has also asked that the court disqualify County Attorney Andrea Erard as the attorney representing the county in this matter because the restaurant intends to call Erard as a witness, and said that an attorney can’t both represent the client and serve as a witness. The request for Erard’s disqualification states that Erard “possesses information and has expressed legal opinions verbally and in writing that are material to the plaintiff’s case that require her testimony before the court. Further, she is a crucial witness to the facts giving rise to the HITW defenses in this case.”